R v Tupou

Culpability

1. As he did in the Local Court, on this appeal the appellant relied upon the report of a psychologist, Mr Lamarque. Mr Lamarque received a referral from Dr Fleischner, apparently a general practitioner. In his report of 15 April 2021, Mr Lamarque set out aspects of the appellant's background which the appellant relies upon as providing context for his offending. Features of that report, which appeared to be based entirely upon what the appellant said to him, included:

• born of Tongan parents, the appellant concluded his education at the level of year 10, before working on a family farm. The appellant reported that he fell in with the wrong crowd and had exposure to the criminal justice system at a young age;
• the appellant asserts that he was the subject of repeated acts of violence inflicted by his father;
• the appellant explained that his robbery arose because of a desperate need to recover savings after they had been lost from his gambling activities. Those gambling activities were, in turn, the result of his being intoxicated by a combination of drugs and alcohol.

1. The appellant informed the Community Corrections Officer that since 2019, he had significantly escalated his alcoholic consumption to the point where he apparently consumed a carton of beer every week and started to use cocaine once every fortnight.
2. He also informed the officer that he started to gamble on poker machines for leisure purposes. Apparently he had some initial success; which led him inexorably to gamble more; so much so that he became so addicted that he was gambling away his entire weekly wage, as a leading hand in a construction company, of $2,300.

Consideration of the gravity of the offending

1. The appellant submitted that the behaviour was opportunistic; the force used prior to obtaining the wallet was a push backwards; he held a spoon in a "threatening manner" and the violence was constituted by a push resulting in the proprietor falling backwards. It was said that the offence was of limited duration; and the property was recovered. The wallet, cigarettes and most of the money ($16,775) were seized by police (and presumably returned).
2. The appellant submitted, further, that the offending occurred in the context of a gambling addiction and whilst he was intoxicated. In my view, neither of those factors materially diminish his culpability. Further, I do not accept the link between a difficult childhood and the gambling addiction. I am unable to accept the appellant's submissions that Bugmy principles [2] apply in this regard. This is not a case of a person, exposed to violence, becoming a habitual perpetrator himself of violence through virtual osmosis because of pent up anger and frustration. Whilst acknowledging a difficult childhood, the appellant's more recent history showed that he had been able to secure good employment and a loving and supportive wife. His descent into gambling was not shown to be connected with his being the victim of an abusive father. His Counsel said that his spiral into alcohol and drugs occurred in 2019. This was well after any deleterious effects of an abusive upbringing.
3. The Crown submitted that there was some degree of planning. The appellant knew where the brothel was and approached it very early in the morning. It might be added that he did not go into brothel immediately and attempt to seize property. The appellant took some time, going into the lounge room in the brothel and lulling the proprietor into thinking that he was there to receive sexual services. It appeared from the footage that he had determined an exit point before he took the property. If, as his evidence suggested, he was intoxicated because of alcohol or drugs, he had sufficiently cooled off to have his wits about him in the brothel. In this way, he deliberately acted in a disarming fashion. The Crown says that a significant amount of money was taken.
4. I substantially agree with the Crown. The amount of money seized was not insubstantial. Actual violence was used against the proprietor of the brothel, on multiple occasions, even if it was not especially serious. Although she was not called, I infer that the conduct would have been shocking to the proprietor of the brothel. But for her bravery and persistence, there would have been real doubt as to whether the appellant would have been apprehended. The appellant's submission that the robbery was of short duration narrowly focusses on the acts of acquiring the property and overlooks the circumstances of the background conduct and the aftermath, including, the appellant punching the window of a car in which the proprietor was seated, as an effective sanctuary. This also included his initial denials to the police of wrongdoing. For reasons to be remarked upon, I consider that the nature and identity of the victim is an aggravating circumstance, and propose to treat that matter as an aggravating factor, rather than relating to the objective gravity of the offending. Finally, his vast consumption of alcohol and drugs is not a mitigating factor.
5. I find that the offending fell somewhere in between the low and mid-range of offending for conduct of the subject kind.

Aggravating factors

1. In the Local Court, the Crown submitted that the offending involved the infliction of actual violence and not just threatened violence; that it was committed for financial gain; that the appellant had a record of prior convictions and that the victim was 'vulnerable'.
2. I will address the prior criminal record when considering the appellant's subjective case.
3. Although the appellant's Counsel did not contest that it might be regarded as an aggravating factor, in my view, although it might be thought to be a technical point, I do not consider that actual violence is an aggravating factor for the subject offence. It is more appropriately regarded as a matter which makes more objectively serious the offending in question.
4. Nor do I consider that the motive of financial gain aggravates the offending. That is inherent in the subject offence.
5. I accept that the victim here was "vulnerable" in the sense indicated by s 21A(2)(l). I agree with the Crown's suggested analogy, of her position being analogous to a late night, or early morning, cashier, typically isolated from assistance and potentially subject to aggression from an intoxicated individual (Longworth v the Queen [2017] NSWCCA 119 at [18]). I regard the appellant as choosing what might be called a 'soft target'. If I am wrong about the matter being aggravating, then the circumstance would elevate the objective gravity of the offending in any event.

Harm to the victim

1. The Crown did not rely upon any victim impact statement but, in view of the status of the victim that might not be regarded as altogether surprising. Proprietors of brothels are not generally wont to broadcast troubles concerning their business to police or the outside world generally.
2. In this appeal, the Crown played CCTV footage of the robbery, from the perspective of different camera angles. Camera 2, in particular, shows a petite woman being aggressively and repeatedly shunted out of the way by a much larger man. A spoon was held in a menacing manner. Whilst a spoon cannot be treated as a dangerous weapon, the fact that it was brandished probably would have portended the infliction of violence if the proprietor did not accede to the appellant's demands. Aside from the multiple pushes of her, after the property was taken, he subsequently also punched the window of a car in which she, and another passenger, were in.
3. Notwithstanding the absence of a victim impact statement from the victim, I accept that this would have been a most unsettling incident for her and apt to occasion trauma. One of the purposes of sentencing is to recognise the harm done to the victim (see s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act')).

Age and background

1. The appellant was 35 years of age at the date of offending. Until recently, he worked in the construction industry.

Antecedents

1. The appellant has a criminal history. In 2004, he was convicted and sentenced for a substantial period of imprisonment for a more serious offence falling within the same genus of offence for the subject of offending: robbery in company with a dangerous weapon. At that point, the appellant had the benefit of a good prior record, and his young age and relative immaturity would have counted in his favour.
2. Shortly before the subject offending occurred, he had completed a Community Corrections Order for the offence of assault occasioning actual bodily harm.
3. The appellant's Counsel argued, in effect, that the former offence was old and the sentence for that, and the subsequent offence were completed without incident.
4. In Veen v the Queen (No.2) (1988) 164 CLR 465, the plurality in the High Court spoke of the relevance of past convictions in two senses. First, it should not be given disproportionate weight to the gravity of the instant offence. Secondly, it is relevant to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, considerations of retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.
5. It is the second of these principles which have particular salience here. Notwithstanding that the more serious prior offence occurred a relatively long time ago now, when he was relatively young, and notwithstanding that the precise circumstances of the earlier offences, especially the robbery in company, cannot be placed before this Court, there is a correspondence between the brazenness of the attack the subject of the instant offence and inherently the earlier offence. Both were indicative of at least some level of planning and premeditation and both necessarily involved the actual or potential threat of personal violence. There was also correspondence between the pushing that was featured in this case and the more recent prior offence of assault, committed approximately 2 years before the instant offending.
6. The prior offending disentitles the appellant to leniency and augments the considerations of specific deterrence, retribution and protection of the community.

The Plea

1. The Crown accepted that the appellant entered a plea at the earliest opportunity. The appellant is entitled to the 25% discount on his plea.

Remorse

1. Mr Lamarque reported that the appellant had expressed shame, contrition and remorse and was particularly mindful of the suffering of his wife and children. Mr Lamarque did not, however, report the appellant regretted the impact of his actions upon the victim.
2. However, the appellant was reported by the Community Corrections Officer as expressing sympathy to the victim and acknowledged how his actions may have traumatised her.
3. The Community Corrections Officer noted that the appellant had accepted responsibility for his offending behaviour and, moreover, was embarrassed about it.
4. In a letter of apology that was before the Local Court and again in this Court, the appellant acknowledged making wrong and stupid decisions for which he apologised and which he expresses remorse.
5. I was somewhat reserved as to whether he has full insight into the effect of his conduct on the brothel proprietor. True he remarked upon this to the Corrections Office, but in multiple other opportunities, his regret was directed towards his engaging in wrongful conduct particularly for its effects upon himself, his wife and his family, without real focus on the victim.
6. In fairness, when led by his Counsel, he apologised again to her. On balance, I accept that he is fully remorseful.

Rehabilitation

1. The appellant's psychologist referred, in his report, to matters which the appellant had told him about what he had done since the offending. He had not drunk any alcohol or used drugs since the incident in question. He had reduced his association with 'drinking and drug use companions'. He felt as if he was getting closer to his children; reflecting that he had been an absent father.
2. Mr Lamarque commented upon the appellant's attempts to put in place to maintain a commitment to a 'clean' lifestyle and expressed confidence that he could maintain those gains. With the support that the appellant was getting from his wife, children, family and church community, and with the counselling that the appellant intended to continue to receive, he opined that the appellant was unlikely to reoffend.
3. In the SAR, the Community Corrections Officer noted that the appellant was residing with his wife and four children in stable accommodation. He is receiving support from both of his parents and siblings. This was before the appellant re-entered custody.
4. The appellant was also working well as a leading hand for a construction company. As to the latter aspect, an email from Mr Geoffrey Butler, a Senior Supervisor of Track Construction with Laing O'Rourke Australia commented upon his supervision over the appellant for 9 years. Most relevantly, Mr Butler noted that the appellant had confided in him about his offending. He also noted that the appellant had still performed his duties professionally even with the sentencing proceedings hanging over his head. In a more recent email, Mr Butler indicated that the appellant's position would remain as it is pending the determination of this appeal. Another letter, from Mr Tua Tinao, from the same employer, also spoke favourably about the appellant and noted that he occupied a leadership position.
5. The appellant and his wife are both engaged in counselling. It appears that he is also receiving counselling to deal with issues associated with the aggression said to have developed from his childhood. The appellant himself was engaged with a gambling counsellor and indications were that, although in the early stages of recovery, he had demonstrated progress.
6. What the appellant told the Corrections Officer is supported by a letter from Ms Vanessa Lozada dated 1 September 2021. Ms Lozada is a Counsellor of an organisation called 'GambleAware', an entity which receives state government funding to assist individuals and/or families impacted by gambling. Ms Lozada indicated that the appellant had attended 8 fortnightly face-to-face and telephone individual sessions from 15 March 2021 (less than 2 weeks from the date of the offending). Ms Lozada said that the appellant had made her aware of his offending and commented favourably upon his willingness and motivation to resolve his gambling addiction.
7. The appellant's profession of his intentions is also supported by references from Pastor Laufale and his wife. Pastor Laufale commented that whereas the appellant's wife was a committed member of the LifeSpring Church since 2015, the appellant had not been a regular attendee. That had changed since his offending and, as well as noting his expression of remorse, the appellant had received counselling and had made efforts to integrate himself within the Church. He has apparently become more dedicated to proving himself as a father. Pastor Laufale subsequently has sent a recent email, in which he set out the recent routine with the appellant involving meeting and texts to assist with his pastoral care.
8. Amongst other things, in her letter, the appellant's wife, Judy Tupou noted the appellant's recent commitment to her faith, his decision to get baptised and commented favourably upon his motivated behaviour in recent months.
9. The Community corrections officer indicated that the appellant was willing to undertake intervention to address his gambling. With reference to his responsiveness to supervision, however, the Officer recorded that his prior engagement with community services work was deemed unsatisfactory. In fairness, that was said to be due to general health reasons impacting upon his capacity to complete the orders. However, a real concern, as indicated by the Crown is that when the subject of prior supervision for his most recent prior offence, it does not appear that he had disclosed prior issues concerning gambling and alcohol when he had the opportunity to do so. That concern was not entirely alleviated by the appellant's evidence in re-examination.
10. The Community Corrections Officer assessed the appellant as being at a T1 'Medium to Low' risk of re-offending.
11. There is no doubt that the appellant has received substantial family and community support; as well as from his employer. Coupled with his expressions of remorse, he has proven a willingness to undertake treatment to deal with his gambling addiction. I accept that his prospects of rehabilitation are good.

Hardship

1. In this appeal, the appellant relied upon a supplementary statement in support from his wife. Judy Tupou spoke of her difficulties since the appellant went into custody on 5 November 2021, in being the family breadwinner whilst looking after 4 children. She mentioned further that her children were feeling his loss as a father.
2. With no disrespect to Ms Tupou, the matters she identifies are not such as to place her, or her family's situation into the 'exceptional' category of hardship which is usually required to enliven this consideration in the sentencing exercise (R v Edwards(1996) 90 A Crim R 510 at 516-517).

Onerous bail conditions

1. It is submitted that the onerous conditions of bail may be taken to be a form of punishment already suffered by the appellant. I am not convinced that this would amount to 'punishment' even if it may be treated as a significant restriction on his liberty. The fact is that, to his credit, the appellant has used the conditional liberty granted to him to demonstrate steps to rehabilitation which have been to his benefit in the sentencing exercise. This matter is of little weight.

Onerous conditions in custody

1. The appellant's counsel has submitted that most of the time that the appellant has spent in custody has been spent in 'harsh quarantine conditions' resulting in him suffering punishment already. Part of the time that he has spent in custody commenced for 8 days in March 2021, prior to the 'second wave' of the Pandemic that swept Sydney in June this year.
2. The appellant's focus was directed to when he returned to custody after sentence was passed in the Local Court, on 5 November 2021. He gave some evidence of periods of isolation, if not segregation; although whether and to what extent this was due because of the Pandemic was unclear. He emphasised that he had very limited verbal contact with members of his family.
3. I accept that he has had a difficult time of it. I do not accept, as appeared to be submitted on his behalf, that the experience over the last 3 weeks means that, in effect, the consideration of specific deterrence has been entirely fulfilled. As the Crown pointed out, it is not the case that he is a first time offender, in which a jail environment is an entirely alien experience.

INSTINCTIVE SYNTHESIS

1. I take into account the maximum penalty for this offence. As indicated, this is not confined to consideration of the jurisdictional limit that the Local Court was subjected to. By nature, it is a highly serious offence. In R v Murray (unrep, 11/9/86, NSWCCA) Lee J observed that robbery, with or without arms, was so serious that in virtually every circumstance, it should carry a custodial sentence. See also R v Valentini (1989) 46 A Crim R 23 at 26.
2. I take into account the purposes of sentencing, as set out in s 3A of the CSP Act. Principal among those considerations is general deterrence, holding the appellant to account and denunciation. The appellant has a good subjective case, but the offender's prior record and the nature of the offending is such that specific deterrence remains important. Further, for offending of this kind, high significance also needs to be ascribed to reflecting the harm to the victim. Even if that was not manifest in tangible ways, at the very least, the proprietor was innocently going about her lawful business before encountering a shocking episode. The violation of her rights needs to be recognised by this sentence. It is true that the appellant has made not insubstantial strides towards his rehabilitation, but his prospects of rehabilitation are of a lesser significance for offending of this nature.
3. I find that the s 5 threshold has been crossed. Counsel for the appellant concedes as much.

Whether to make an order for an ICO

1. The appellant's principal point in this appeal is that the Local Court's imposition of an 18 month period of imprisonment should have been followed by an order that this term of imprisonment be served by intensive correction in the community.
2. It is now well-settled that an order that a term of imprisonment be served by intensive correction must follow two further steps (after the initial judgment that the s 5 threshold is crossed), being (a) fixing the term of the period of imprisonment; (b) evaluating the criteria in s 66 of the CSP Act. Step (a) arises because by the terms of s 68(1) of the CSP Act, the Court cannot make an ICO if the duration of the term of imprisonment for an offence exceeds 2 years.
3. It is also well settled that it is not a legitimate exercise of the sentencing discretion to fix the length of the term of imprisonment by reference to the desired outcome of making an ICO: Mandranis v R [2021] NSWCCA 97 at [36].
4. In my opinion, the term of the imprisonment imposed by the learned Magistrate was lenient to the appellant, taking into account the guilty plea, given the gravity of the offending (aggravated as it was in the sense indicated) and the sentencing considerations I have adverted to. As indicated during the hearing, I do not, however, propose to increase the head sentence.
5. Although I accept that the appellant has taken real steps to rehabilitate, given the appellant's recent criminal history, the risk to community safety, is not such that the making of an ICO is warranted. For the purpose of s 66(3), it is also not appropriate for his term to be served in that way given the underlying gravity of the offending.

Other considerations

1. The appellant has been in custody for a period of 31 days. The sentence will be backdated to take that period into account.
2. Although he is not a first time offender, the appellant has made encouraging strides to rehabilitation. I make a finding of special circumstances to facilitate that rehabilitation. I would add that there is a basis for a substantial reduction in the non-parole period.
3. I propose to substitute for the length of the non-parole period a period of 9 months for the period that was imposed by the learned Magistrate.
4. I vary the Magistrate's sentence as follows. Mr Tupou, you are sentenced to a term of imprisonment of 18 months commencing on 26 October 2021 expiring on 25 April 2023. The non-parole period is 9 months and expires on 25 July 2022, after which you will be eligible for release. The severity appeal is otherwise dismissed.

Endnotes

1. The Queen v De Simoni (1981) 147 CLR 383
2. Bugmy v The Queen (2013) 249 CLR 571 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2021